Davis v. Oktibbeha Cnty.

• Decision Date: 28 May 2014
• Docket Number: CIVIL ACTION NO.: 1:13-cv-175-SA-JMV
• Parties: ALICE DAVIS PETITIONER v. OKTIBBEHA COUNTY, et al. RESPONDENTS
• Court: U.S. District Court — Northern District of Mississippi

ALICE DAVIS PETITIONER v. OKTIBBEHA COUNTY, et al. RESPONDENTS

CIVIL ACTION NO.: 1:13-cv-175-SA-JMV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION

SO ORDERED: May 28, 2014

MEMORANDUM OPINION

This matter is before the court on motion of Respondent Oktibbeha County pursuant to 28 U.S.C. § 2244(d),¹ to dismiss the Petition for Writ of Habeas Corpus. Having considered the matter, the court finds the motion is well taken as explained hereafter.

28 U.S.C. § 2244(d) provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or the laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application forState post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1) and (2).

Accordingly, unless the narrow exceptions of § 2244(d)(1)(B-D) apply, the AEDPA requires that a petitioner's federal habeas corpus petition be filed within one year of the date that the petitioner's judgment of conviction becomes final, subject to tolling for the period when a properly filed motion for post-conviction relief is pending in state court. See, e.g., Cantu-Tzin v. Johnson, 162 F.3d 295 (5^th Cir. 1998), cert. denied, 119 S.Ct. 847 (1999); Sonnier v. Johnson, 161 F.3d 941, 944 (5^th Cir. 1998); Flanagan v. Johnson, 154 F.3d 196, n.1 (5^th Cir. 1998) (§ 2244(d)(2) requires federal courts to toll the time spent in state court post-conviction litigation). Petitioner bears the burden of raising and showing that one of the narrow exceptions of § 2244(d)(1)(B-D) apply to his case. Here, petitioner has wholly failed to do so, and as a result, the court will determine whether the petitioner filed her petition within one year of a final judgment of conviction under 2244(d)(1)(A).

The Petitioner, Alice Davis, is in the custody of Mary Pippins, Warden of the Washington County Regional Correctional Facility in Greenville, Mississippi. Davis entered a guilty plea to one (1) count of sale of cocaine in the Circuit Court of Oktibbeha County, Mississippi. On May 6, 2008, she was sentenced to serve twenty-four (24) years in the custody of the Mississippi Department of Corrections (Circuit Court No. 07-199-CR). (At that time, two (2) additional counts were retired to the files). By statute, there is no direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101.² Therefore, Davis' judgment became final on June 5,2008, and her federal habeas petition was due by June 5, 2009.

If Davis filed a "properly filed" application for post-conviction relief ("PCR") as contemplated by 28 U.S.C. § 2244(d)(2) on or before June 5, 2009, it would have tolled the limitations period. See Grillete v. Warden, 372 F.3d 765, 769 (5^th Cir. 2004); Flannagan v. Johnson, 154 F.3d 196, 201 (5^th Cir. 1998); Davis v. Johnson, 158 F.3d 806 (5^th Cir. 1998). Rather, Davis filed a letter, which the court treated as a Motion for PCR, in the Oktibbeha County Circuit Court on February 25, 2010 (signed February 9, 2010). That court filed an order on March 10, 2010, dismissing the motion (Circuit Court Case No. 2010-0076-CV). According to the records of the Mississippi Supreme Court Clerk's Office, Davis did not appeal the trial court's dismissal of the motion to that Court. As Davis' motion was filed after the expiration date, she is not entitled to any statutory tolling of the AEDPA's statute of limitations for the pendency of the post conviction motion.³

Under the "mailbox rule," a Petitioner's pro se federal habeas petition is deemed filed on the date that she delivered the petition to prison officials for mailing to the district court.Coleman v. Johnson, 184 F.3d 398, 401, reh'g and reh'g en banc denied, 196 F.3d 1259 (5^th Cir. 1999), cert. denied, 529 U.S. 1057, 120 S. Ct. 1564, 146 L.Ed.2d 467 (2000) (citing Spotville v. Cain, 149 F.3d 374, 376-78 (5^th Cir. 1998)). The instant habeas petition was signed on September 12, 2013, and was stamped "filed" in this case on September 19, 2013. As such, the Petitioner's habeas petition was filed some 1,560 to 1,567 days beyond the June 5, 2009, deadline for filing her federal habeas petition. The Petitioner has given no valid explanation for the tardiness of her federal habeas petition, and she fails to present any "rare and exceptional circumstance" as to invoke equitable tolling of the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 & n.3 (5^th Cir. 2000), cert. denied, 532 U.S. 963 (2001); Felder v. Johnson, 204 F.3d 168, 171 (5^th Cir. 2000), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5^th Cir. 1999). Indeed, petitioner has not responded in opposition to the instant motion to dismiss. Because Davis' petition was filed too late, and because she cites no "rare and exceptional" circumstance to warrant equitable tolling, the petition must be dismissed with prejudice pursuant to the one-year statute of limitation provision of the AEDPA.

The instant petition will thus be dismissed with prejudice and without evidentiary hearing as untimely filed under 28 U.S.C. § 2244(d). A final judgment consistent with this memorandum opinion will issue today.

Sharion Aycock

U.S. DISTRICT JUDGE

1. Rule 4 of the Rules Governing §2254 Cases allows for a response other than a formal answer, as described in Rule 5, and explicitly states that, if the judge does not preliminarily dismiss the petition, "the judge must order the respondent to file an answer, motion, or other response within a fixed time." (Emphasis added). Further, the Rule 4 Advisory Committee Notes acknowledge that "Rule 4 authorizes the judge to 'take such other action as the judge deems appropriate,'" and specifically address the filing of a "motion to dismiss."

2. At one time, the Mississippi Supreme Court had carved out an exception, allowing an appeal from a guilty plea within thirty (30) days when the issue concerned an alleged illegal sentence. See Burns v. State, 344 So.2d 1189 (Miss. 1977); Trotter v. State, 554 So.2d 313 (Miss. 1989); Berry v. State, 722 So.2d 706 (Miss. 1998); Campbell v. State, 743 So.2d 1050 (Miss. App. 1999); and Acker v. State, 797 So.2d 966 (Miss. 2001). The Mississippi Court of Appeals has since recognized that this exception no longer applies to guilty pleas taken after the July 1, 2008, effective date of the new amendment to Mississippi Code Annotated section 99-35-101 (Supp.2009). Seal v. State, 38 So.3d 635 (Miss.Ct.App. 2010). As the Petitioner's plea was entered before July 2008 she has been afforded the benefit of the additional thirty (30) days in calculating the finality of her judgment.

3. The petition could alternatively be dismissed with prejudice for failure to exhaust state court remedies. "A fundamental prerequisite to federal habeas relief under 28 U.S.C. § 2254 is the exhaustion of all claims in state court under § 2254(b) prior to requesting federal collateral relief." Sterling v. Scott, 26 F.3d 29, 30 (5^th Cir. 1994). To satisfy the exhaustion requirement, a federal habeas applicant must generally present his claims to the state's highest court in a procedurally proper manner and provide the high state court with a fair opportunity to pass upon the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 67 USLW 3682 (1999); see also Carter v. Estelle, 677 F.2d 427, 442-44 (5^th Cir. 1982), modified on other grounds, 691 F.2d 777 (5 Cir. 1982), cert denied, 460 U.S. 1056 (1983); Dupuy v. Butler, 837 F.2d 699, 702 (5^th Cir. 1989).

According to the records of the Mississippi Supreme Court Clerk, Davis has never properly submitted her claims to the state's highest court for judicial review. "The exhaustion...